San Mateo's '7-Eleven' code language, and city staff analysis

Here is the section of San Mateo code (http://qcode.us/codes/sanmateo/) dealing with discontinuance of use. Subsections (b) and (c) are the most pertinent:

27.72.020 DISCONTINUANCE OF USE

(a) Whenever any part of a building, structure or land occupied by a nonconforming use is changed to or replaced by a use conforming to the provisions of this title, such premises shall not thereafter be used or occupied by a nonconforming use, even though the building may have been originally designed and constructed for the prior nonconforming use.

(b) Whenever a nonconforming use of a building or structure, or part thereof, has been discontinued for a period of six consecutive months, such use shall not after being discontinued or abandoned be reestablished, and the use of the premises thereafter shall be in conformity with the regulations of the district.

(c) Where no enclosed building is involved, discontinuance of a nonconforming use for a period of six months constitutes abandonment, and the use of such premises shall thereafter conform with the regulations of the district and shall not thereafter be used in a nonconforming manner.

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(d) A nonconforming use not authorized by the provisions of this code and amendments thereto in effect at the time this title becomes effective, shall be discontinued and not reestablished unless, pursuant to the provisions of this title, the use is conforming to the district in which it is then located. (Prior code § 144.02).

And here is the relevant portion of a staff analysis prepared in advance of the Nov. 15 council meeting:

In staff's opinion, the drafters of Section 27.72.020 intended for there to be two different rules for

determining when a nonconforming use loses its legal status. Subsection (b) states the rule to be

applied "whenever a nonconforming use of a building or structure" is involved. Subsection (c) states the rule that applies "where no enclosed building is involved." Under subsection (c), the rule is that

"discontinuance of a nonconforming use for a period of six months constitutes abandonment." These words suggest that "abandonment" is required for a nonconforming use to lose it legal status; however, when there is no enclosed building involved, mere discontinuance for a period of six months is deemed to be abandonment.

Subsection (b) uses very different language to describe the rule when a building or structure is involved, as is the case with the subject property. Again, this subsection states the rule as follows: "whenever a nonconforming use of a building ... has been discontinued for a period of six consecutive months, such use shall not after being discontinued or abandoned be reestablished." Because the drafters used different language to describe the rule when a building is involved (and gave this rule its own subsection), staff believes they intended to provide a different rule, that is, that something more than cessation of use for six months is required. Staff believes the more reasonable interpretation of

subsection (b) in light of its juxtaposition with subsection (c) is that whenever a building is involved there must be a discontinuance of the use and abandonment.

There is a sound policy reason to support this interpretation. When either no enclosed building, or no

building at all, is involved, it is very easy for the property owner to convert the property from a

nonconforming to a conforming use. Thus, establishing a lower threshold for loss of legal

nonconforming status (e.g. mere cessation of use) makes sense. On the other hand the presence of a

building on the property makes conversion to a conforming more expensive and complicated. The

property owner must incur the cost of demolishing the building and preparing the site for the

conforming use. Thus, it makes sense that when a building is involved, the city would require that the

intent to abandon the previous nonconforming use be present before finding that the legal status of